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Madhya Pradesh High Court · body

2007 DIGILAW 594 (MP)

SUNIL KUMAR PANDEY v. STATE OF MADHYA PRADESH

2007-05-17

U.C.MAHESHWARI

body2007
Judgment ( 1. ) THE appellants have preferred this appeal being aggrieved by the judgment dated 13-6-2000 passed by the Vth Addl. Sessions Judge, Bhopal in sessions Trial No. 339/98, whereby each of them have been convicted under sections 325 and 325/34 of the IPC with the punishment suffered by them in judicial custody with fine of Rs. 4,000/ -. In default of it, further S. I. one month was awarded. ( 2. ) THE facts giving rise to this appeal in short are that on dated 25-9-98 at about 6 Oclock in the morning, wife of appellant Narbadeshwar was digging the soil at the back side of the hut. The same was objected by the wife of complainant Rajeswar Prasad Tripathi. In response to it, appellant Nos. 1 and 2, namely, Sunil Kumar Pandey and Narmadeshwar Prasad came there with rod and threatened the complainants family to kill them. Under such fear, Santosh the son of the complainant was going to lodge a report by scooter. He was restrained and apprehended by appellant No. 1 Sunil Pandey and also subjected to a blow of iron rod on his head by which Santosh fell down. He was again subjected to a blow of stick by appellant No. 2 on his leg. The blood was profused from such injuries. The incident was seen by Rambadan, Meena, Ramratan and simhal. The complainant and victim Santosh went to Police Station, govindpura and lodged a report from where the victim was sent to hospital. On medical examination, his MLC report was prepared. During investigation, after arresting the appellant and interrogating the witnesses, the alleged implements, i. e. , rod and stick were seized from the appellants. After completion of the investigation, the appellants were charge-sheeted for the offence punishable under Sections 307/34 of the IPC. The case was committed to the Sessions court, where on framing the charges for the aforesaid sections against the appellants, they abjured the guilt, on which, the trial was held. The same was concluded in conviction of the appellants under Sections 325,325/34 of the IPC instead of Section 307/34 of the IPC, for which each of them were punished with the punishment as mentioned above. The same is under challenged in this appeal. ( 3. The same was concluded in conviction of the appellants under Sections 325,325/34 of the IPC instead of Section 307/34 of the IPC, for which each of them were punished with the punishment as mentioned above. The same is under challenged in this appeal. ( 3. ) SHRI Amit Verma, learned Counsel for the appellants assailed the impugned conviction on the ground that the story putforth by the prosecution has not been proved by any independent source of the evidence. Although, the incident took place at a public place in day-light but in view of the previous enmity between the parties, in the absence of any independent evidence, the alleged conviction is not sustainable. He elaborated his arguments by saying that the deposition of Shiv Kumari (P. W. 3), the mother of the victim, could not be considered for any purpose as her case-diary statement was not recorded during investigation. The inter se inconsistency in the statements of Rajeshwar Prasad and Santosh Kumar have also not been considered by the Trial Court. He also said that in the absence of X-ray plate or the skiagrams, the X-ray report was not admissible. Thus, the alleged conviction of the appellants under Sections 325, 325/34 is not sustainable. According to him, in such situation, the appellants could not be held guilty for more than offence of Section 323 of the IPC as the fracture on the head of the victim has not been proved by admissible evidence the skiagrams, and also prayed for such modification. He further said that on such modification or in any case, the appellant No. 1 could not be punished with the jail sentence because he was below 19 years of the age on the date of the incident as per the arrest memo (Exh. P-10) and was entitled for extending the benefit of mandatory provision of Section 6 of Probation of Offenders Act. So far appellant No. 2 is concerned, he said that he being first offender having no criminal antecedents or history, is also entitled for such benefit. With these submissions, he prayed for allowing his appeal accordingly. ( 4. ) THE aforesaid prayer has been opposed by Shri Pramod Choubey, learned Govt. So far appellant No. 2 is concerned, he said that he being first offender having no criminal antecedents or history, is also entitled for such benefit. With these submissions, he prayed for allowing his appeal accordingly. ( 4. ) THE aforesaid prayer has been opposed by Shri Pramod Choubey, learned Govt. Advocate saying that the findings of the impugned judgment are based on proper appreciation of the evidence and also in conformity with law and looking to the nature of the offence and the manner in which it was committed, they do not deserve for extending such benefit. He further said that there is no circumstance for modification of the offence even in the absence of skiagrams. So far X-ray report is concerned, the same has been proved by the concerning doctor. Accordingly, he prayed for dismissal of this appeal. ( 5. ) HAVING heard the learned Counsels, after perusing the record of the trial Court and the impugned judgment, I am of the view that the appellants were rightly held guilty for the alleged incident. But their conviction under sections 325 and 325/34 of the IPC requires interference at this stage, for modification into the offence under Sections 323 and 323/34 of the IPC because of the following reasons :- (a) The incident, as mentioned by complainant Rajeshwar Prasad tripathi (P. W. 1) in the FIR (Exh. P-1), has been proved by him while recording his deposition. The victim Santosh Kumar (P. W. 2) also stated the same version as stated by his father Rajeshwar Prasad Tripathi. He also deposed that when he was going to lodge a report by scooter, he was subjected to blow of rod by appellant No. 1 on his head, resultantly, he fell down from the scooter. Subsequent to it, he was subjected to blows of sticks by appellant No. 1 by which, he sustained injuries on his leg and other parts of the body. His testimony is also supported by his mother Shivkumari (P. W. 3 ). Although, her statement could not be considered as admissible evidence because her case-diary statement was not recorded during the investigation but even on excluding the same, the version of the complainant and victim appears to be trustworthy and reliable as the same is supported by the medical evidence available on the record. Although, her statement could not be considered as admissible evidence because her case-diary statement was not recorded during the investigation but even on excluding the same, the version of the complainant and victim appears to be trustworthy and reliable as the same is supported by the medical evidence available on the record. (b) Subsequent to the incident, after lodging the report, the victim santosh Kumar was taken to the hospital where he was medically examined by dr. Mahesh Dixit, who prepared the MLC report (Exh. P-7 ). On recording his deposition, he stated that as per his report he found following injuries on the person of the victim :- (1) A lacerated wound on right side of occipital region. (2) A contusion on the left side back of scapular region. (3) Two abrasions on the left thumb. As per MLC report, the aforesaid injuries described at No. 3 were caused in the left toe. He also referred him for X-ray with a Form (Exh. P-8 ). (c) Dr. M. M. Agarwal (P. W. 7) the treating doctor of the victim in j. P. Hospital, Bhopal supported the testimony of the said doctor and also proved his report (Exh. P-9) the note-sheet of the treatment. Instead the X-ray, CT scan of the victim was carried out by Dr. Rajiv Mishra (P. W. 10) and prepared his report (Exh. P-l2 ). On recording his deposition, he proved the aforesaid report (Exh. P-12) and said that he found small depressed fracture on the right occipital bone but in support of this report, the concerned film/skiagram or its plate, was neither produced nor proved on the record. In the absence of such films/skiagram or plate, mere on the testimony of the doctor, by considering his report, it could not be inferred that the alleged fracture was found in the head of the victim. On earlier occasion, this question was answered by this Court in the matter of Ram Nihore Vs. Ram Sajivan, MPWN 1985 Note (104), in which it was held as under:- "it is true that the accused in this case had volunteered to produce exh. D-1 X- Ray photograph disclosing the fracture of humeral bone. But the question of defence for the accused come into play only after the prosecution had proved its case beyond reasonable doubt, which the complainant had failed to do as already seen. D-1 X- Ray photograph disclosing the fracture of humeral bone. But the question of defence for the accused come into play only after the prosecution had proved its case beyond reasonable doubt, which the complainant had failed to do as already seen. Not soever as noted by the learned Judge of the Appellate Court in para 9 of his judgment the incident had taken place on 27-12-1978 and that very day according to the complainant (applicant) the x- Ray photograph had been taken. Exh. D-1, however is dated 1-1-1979 and hence it could as well be that Exh. D-1 is a photograph of someone elses arm and not necessarily of the complainant-applicant. The type of document Exh. D-1 does not prove its contents merely by its production. The contents have to be proved by the person taking the X- Ray photograph or the contents of the report given by him on the basis of that photograph. The learned judge of the Appellate Court, therefore, has rightly come to the conclusion that the complainant had failed to prove beyond reasonable doubt that the accused had committed the offence punishable under Section 325, IPC. There, however, being no doubt about his having committed the offence punishable under section 323, IPC, the learned Judge of the Appellate Court has rightly taking into account the extenuating circumstances dealt with him leniently by giving him benefit of the Probation of Offenders act. Revision dismissed. " ( 6. ) IN view of the aforesaid, in the absence of such skiagrams, the appellants deserve for extending such benefit as they have been deprived by their valuable right to cross-examine the concerned doctors on the basis of such film/skiagrams. In fact, the preliminary evidence has been withheld by the prosecution which gives sufficient circumstance to draw an inference against the prosecution that no such alleged fracture was sustained by the victim. The same is drawn accordingly. In such circumstances, on excluding such report of Exh. P-12, the alleged injuries sustained by the victim, could be treated as simple in nature. Under such circumstances, the appellants would have been convicted for the offence under Section 323 and 323/34 of the IPC and not under the aforesaid sections. Hence, the conviction of the appellants is modified under sections 323 and 324/34 of the IPC. P-12, the alleged injuries sustained by the victim, could be treated as simple in nature. Under such circumstances, the appellants would have been convicted for the offence under Section 323 and 323/34 of the IPC and not under the aforesaid sections. Hence, the conviction of the appellants is modified under sections 323 and 324/34 of the IPC. In pursuance of it, their conviction and sentence under Sections 325 and 325/34 of the IPC are hereby set aside. ( 7. ) COMING to the question for imposition of the sentence against the appellants, it is apparent from the arrest memo (Exh. P-10) that on the date of incident, appellant No. 1 Sunil was only 19 years of the age and was entitled for extending the benefit of mandatory provision of Section 6 of the Probation of offenders Act as offence under Section 323 of the IPC is not punishable with life imprisonment. Such principle was laid down by the Apex Court in the matter of satyabhan Kishore and another Vs. The State of Bihar, AIR 1972 SC 1554 , in which it was held as under:- "9. Whereas Sections 3 and 4 leave it to the discretion of the Court to make an order as provided therein, Section 6 provides that where a person under 21 years of age is found guilty of an offence punishable with imprisonment (but not with imprisonment for life), the Court by which he is found guilty shall not sentence him to imprisonment, unless it is satisfied, having regard to the circumstances of the case, including the nature of offence, that it would not be desirable to deal with him under Section 3 or Section 4, and if the Court passes any sentence of imprisonment on such offender it shall record its reasons for doing so. Under sub-section (2) the Court, for the purpose of satisfying itself whether it would not be desirable to deal with such an offender under Section 3 or section 4, shall call for a report from the probation officer and consider such report, if any, and any other information available to it relating to the character and physical and mental condition of the offender. Section 6 thus lays down an injunction, as distinguished from the discretion under Sections 3 and 4, not to impose a sentence of imprisonment upon an offender of the class covered by the section unless for reasons to be recorded by it, the Court finds it undesirable to proceed with him under Section 3 or 4. " ( 8. ) IN view of the aforesaid, by extending the aforesaid benefit to appellant No. 1 Sunil, he is not punished with any punishment. It is directed that on furnishing a person bond of Rs. 5000/- along with one surety in the like amount to the satisfaction of the Trial Court within a month from today for keeping peace for the period of two years, he shall be released on probation. In default of any terms and conditions of probation, he will have to suffer the consequences and its punishment as per prescribed procedure of the law. ( 9. ) SO far appellant No. 2 is concerned, I do not find fit to extend such benefit to him as he was aged 40 years on the date of incident and when the victim fell down from the scooter, he gave him a blow of iron rod. Thus, he is punished with the jail sentence suffered by him in judicial custody in between 20-5-1998 to 12-6-1998, i. e. , 23 days with fine of Rs. 1000/ -. The same is to be deposited within 45 days from today, failing which he has to suffer further SI one month. ( 10. ) THEREFORE, by allowing this appeal in part, the conviction and sentence of the appellants under Sections 325 and 325/34 of the IPC is modified into Section 323 and 323/34 of the IPC. After such modification, in view of the aforesaid discussion, the benefit of probation is extended to appellant No. 1, while appellant No. 2 is punished with the jail sentence suffered by him as mentioned above with fine of Rs. 1000/ -. The amount of fine, if deposited by appellant No. 1, the same shall be refunded to him after proper verification and if deposited by appellant No. 2, then after adjusting the find amount imposed on him under Sections 323 and 323/34, the remaining amount shall be refunded to him. Accordingly, the judgment of the Trial Court is modified to this extent. Accordingly, the judgment of the Trial Court is modified to this extent. The bail bonds of the appellants are hereby cancelled. ( 11. ) THE appeal is allowed in part as indicated above. Criminal Appeal partly allowed.